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Internal Market: ESA closes procurement case on regional air tender

The EFTA Surveillance Authority (ESA) has decided today to close a complaint case against Norway under the EEA public procurement rules concerning public tenders of certain regional public service obligation air routes (PSO routes) for the period 2012 to 2016. A related competition investigation is still ongoing.

In the public procurement case, the complainant argued that certain operational requirements in the tender documents for the PSO routes favoured Widerøe's Flyveselskap AS ("Widerøe") and were impossible for any other air operator to meet.

Permissible safety requirement under public procurement rulesHaving assessed the tender requirements, specifically the requirement to have necessary instruments for a vertical satellite-based approach system (the SCAT-1 ground-based augmentation system) installed in aircraft servicing certain airports in Norway, ESA did not find a breach of the EEA public procurement rules.

Under the EEA procurement rules, public authorities have broad discretion in defining their needs and in establishing the technical or performance requirements that services must meet in order to satisfy those needs. ESA found that while the SCAT-1 requirement did in fact have the effect of favouring Widerøe, the requirement is nevertheless compatible with the EEA public procurement rules, as the Norwegian authorities have shown that it was necessary for safety reasons and there were no alternative ways of reaching the same safety level at the airports in question at the time of the tender. On these grounds, ESA has now closed the complaint case under the EEA procurement rules.

Investigation under the EEA competition rules still pendingESA will, however, continue its investigation into whether Norway has enacted certain State measures related to the SCAT-1-system on PSO routes in Norway contrary to the EEA competition rules. A State measure will be in breach of those rules where it can be shown that it would result in actual or potential anti-competitive effects or consequences.